Matthews v. Myatt

• Decision Date: 11 October 1916
• Docket Number: 258.
• Citation: 90 S.E. 150,172 N.C. 230
• Parties: MATTHEWS v. MYATT ET AL.
• Court: North Carolina Supreme Court

90 S.E. 150

172 N.C. 230

MATTHEWS v. MYATT ET AL.

No. 258.

Supreme Court of North Carolina

October 11, 1916

Appeal from Superior Court, Connor County; Wake, Judge.

Action by Powhatan Matthews against W. A. Myatt and others. Judgment for defendants, and plaintiff appeals. New trial.

In suit to recover land claimed by plaintiff under a deed and also by adverse possession, instruction limiting recovery to possession under a deed, and eliminating adverse possession held too restrictive.

The action was brought to recover a small strip of land, about five feet wide, fronting on McDowell street, in the city of Raleigh.

The plaintiff claimed the land upon two grounds: First, that it was covered by a deed of James J. Litchford, administrator of John O'Rourke, the owner thereof, to Jonas Matthews, his ancestor, dated November 11, 1868, and prior deeds connected therewith and, second, that if the land was not conveyed by the said deeds, he has acquired title to it by the adverse possession of himself and those under whom he claims. The defendants denied the plaintiff's ownership of the land, and the feme defendant specially alleged ownership in herself by inheritance from her father, L. S. Perry, who she says, was the owner of it at the time of his death. With respect to the claim of adverse possession set up by the plaintiff, the court charged the jury as follows:

"The plaintiff says further that without regard as to how the lines may be located, or the corners may be located according to maps, that he and those under whom he claims have been in the open, notorious, visible, exclusive adverse possession of the strip of land for many years; that is, for many years, since 1868, and for years prior thereto, and he contends, gentlemen of the jury, that you ought to find that Jonas Matthews, when he took possession of this property under his deed in 1868, took possession of and held possession of the lot up to the fence which he contends that you should find was on this land, and that even if there had been an error in locating this line according to the maps, that he and those under whom he claims by adverse possession gained title, secured title to this strip."

And again:

"I instruct you further, gentlemen of the jury, if you are satisfied by the greater weight of the evidence in this case that a deed was made to Jonas Matthews for this lot in 1868, that Jonas Matthews entered into possession of the lot described in this deed, that the lot described in the deed is the identical lot referred to in the pleadings and evidence in this cause, if you find from the evidence in the case that Dr. Perry was then living, and that he lived until 1872, and that Jonas Matthews continued in possession, and that at his death in 1912 the plaintiff here, Powhatan Matthews, as the devisee named in his will, went into possession of this lot, then I instruct you that your answer to this issue should be, yes, all."

The jury returned the following verdict:

"(1) Is the plaintiff the owner and in the possession of the lot of land included within the red lines on the map made by R. B. Seawell, engineer, dated April 20, 1916? Answer: Yes; but not of five-foot strip shown on map.

(2) If so, did defendant trespass on said lot of land as alleged in the complaint? Answer: No.

(3) If so, what sum, if any, is plaintiff entitled to recover of the defendants as damages for such trespass? No answer."

Peele & Maynard and Lauchlin McNeill, all of Raleigh, for appellant.

R. N. Simms, of Raleigh, for appellees.

WALKER, J. (after stating the facts as above).

The strip of land in dispute lies between two lines shown on the court map, which are five feet apart; the northern one of these lines being the line claimed by Mrs. Myatt as the true line dividing the lots of the parties from each and the southern line of the two being the one claimed by Mr Matthews as the true dividing line, according to their respective deeds. But Mr. Matthews contends that, even if he is mistaken as to the location of the dividing line, he and those under whom he claims have occupied adversely the disputed land, which was inclosed by a fence, for more than 20 years before this suit was commenced, and since the year 1868, when his father, who died in 1912, received the deed from Mr. Litchford. There was evidence of adverse possession...